Annotations 10/2010

(a claimant of the alternative fuel credit that is also a Form 720 filer for any I.R.C. Sec. 4041 tax must first offset that liability on Form 720 and may claim any remaining balance of the credit on either Form 8849 or Form 4136; if claimant is not a Form 720 filer for any I.R.C. Sec. 4041 tax, claimant can claim entire amount on Form 4136; claim can be made for any open year for which credit available after claimant obtains registration number).


(New Mexico's domestic well statute that requires State Engineer to issue domestic well permits to draw groundwater for domestic use upon filing of an application without notice or evaluation by State Engineer of any effect on anticipated domestic water use on senior water rights in fully appropriated basin held to be constitutional). 


(creditor filed motion for relief from automatic stay; farm divided between debtors pursuant to settlement agreement and husband executed QCD to wife of all right, title and interest in the farm; creditor argued that debtor (husband) had no interest in farm as of petition date and farm was not property of the bankruptcy estate and stay should be lifted as to the farm; motion granted to lift stay). 


(Chapter 12 debtors filed adversary proceeding against defendants on claim that defendants did not fully pay for ag products purchased on credit from debtors; nature of business relationship between parties in dispute; defendants entitled to judgment because debtors failed to discharge their burden of proving terms of contract and any alleged contractual breach; no meeting of minds on pricing present). 


(massage therapists, cosmetologists, and nail technicians (service providers)that operated on the petitioner's premises were determined to be independent contractors; case turned on the specific facts involved – providers were generally charged a weekly “booth rent” equal to the greater of approximately $80 base rent or 25 percent of the provider’s gross revenues; petitioner claimed that they had a landlord/tenant relationship with the service providers, but IRS claimed the providers were employees; court ruled for petitioner - providers were independent contractors). 


(taxpayer does not qualify for first-time homebuyer tax credit for failure to enter into binding purchase contract before May 1, 2010). 


(adverse possession case involving location of fence).


(decedent's will authorized personal representative to distribute tenancy-in-common interests in family farms to personal representative's sister and another sibling; sister's ability to bring partition action not determinative of whether parents intended that personal representative should make the division of farmland without needing the partition action). 


(mortgage broker failed to substantiate many claimed business deductions, and expenses associated with "colorpuncture" therapy training cannot be deducted because, based on the facts involved, the training qualified the broker for a new trade or business).  


(petitioners, married couple, could not claim business expense losses associated with horse ranch because ranch was operated for recreational purposes; profit intent not present).


(storage shed does not qualify as a "principal residence" with result that taxpayer who used storage shed as "home" 40 percent of the time did not own principal residence in prior three years and taxpayer entitled to first-time homebuyer tax credit against cost of constructing permanent home on taxpayer's property). 


(trustee brings adversary complaint to avoid claim of alleged secured creditor asserting claim under financing statement that did not comply with Neb. Rev. Stat. Sec.9-502; trustee's motion for summary judgment granted; financing statement did not properly identify collateral in which security interest claimed and amended financing statement constituted preferential transfer; creditor's claims arose from two farm leases and creditor had been granted administrative priority claim of $181,275.80 for rent payments that came due post-petition; financing statements did not specify that creditor was placing lien on crops grown on the real estate to secure cash rent owed to creditor).


(grain payments paid by cooperative to members and other patrons who share in patronage dividends are PURPIMs and, as a result, cooperative's QPAI and taxable income to be computed without any deduction for grain payments to such persons). 


(case involves inter-relationship between the issuance or renewal of BLM grazing permits and fee-shifting provisions of Equal Access to Justice Act; trial court determined that fees were not available to plaintiff because its environmental claims were brought in a grazing permit renewal proceeding; affirmed). 


(changes made to coal-fired electrical energy generation plant did not violate federal law because they didn't increase hourly rate of sulfur dioxide emissions even if plant's annual emission increased; hourly capacity interpretation was included in state plan for implementing Clean Air Act which EPA approved; Clean Air Act does not authorize imposition of sanctions for conduct that complies with state plan that has been EPA-approved). 


(lienholder (via perfected PMSI) in farm equipment entitled to prejudgment possession of equipment in its replevin action; subsequent lienholder merely relied on statements of farmer and third parties that liens in equipment had been satisfied (they had not) rather than contacting lienholder directly; subsequent lienholder had actual notice of plaintiff's prior interest).


(petitioners, farm couple, transferred proceeds from sale of crops (rather than crops themselves) and USDA payments to corporation; income taxable to couple on individual return under assignment-of-income doctrine rather than corporation; accuracy-related penalty upheld). 


(IRS issues draft Form W-2 for 2011 and announces that it will defer the employer-reporting requirement of the cost of coverage under an employer-sponsored group health plan thereby making it optional for 2011; draft Form includes codes (DD) that employers may use to report the cost of coverage under an employer-sponsored group health plan). 


(on certified questions from federal district court concerning issues associated with water from drainage project (installation of underground stormwater drainage associated with road project) that damaged hotel, state Supreme Court holds that under "all-risk Commercial Property Policy" of insurance, water discharged from pipe not properly characterized as surface water or flood water because such terms not defined in policy; such non-surface water cannot reacquire its classification as surface water upon exit from the stormwater collection system; under policy, "flood water" does not encompass water discharged from a stormwater collection system in concentrated form, pooled, and that thereafter enters a building). 


(on certified questions from federal district court concerning issues associated with water from drainage project (installation of underground stormwater drainage associated with road project) that damaged hotel, state Supreme Court holds that under "all-risk Commercial Property Policy" of insurance, water discharged from pipe not properly characterized as surface water or flood water because such terms not defined in policy; such non-surface water cannot reacquire its classification as surface water upon exit from the stormwater collection system; under policy, "flood water" does not encompass water discharged from a stormwater collection system in concentrated form, pooled, and that thereafter enters a building).


(manufacturing exemption can be utilized by paint manufacturer to exempt itself from use tax  on equipment, including tinting machines and mixers used in retail stores to process paint).


(creditor’s motion to dismiss bankruptcy case on grounds that debtor failed to propose feasible reorganization plan denied and debtor’s plan confirmed; interest rate recalculated based on contract rate).


(court rules that IRS can make a an I.R.C. Sec. 481 adjustment to petitioners' (married couple) 2004 S corporation income in order to account for deductions that were taken in prior years even though the assessment period had already expired for some of the years at issue).  


(son's (as decedent) disclaimer of father's residuary estate not qualified; son's estate (and wife's estate) liable for gift tax and related interest).


(prominent Emeritus Professor of Physics from University of California resigns from American Physical Society over "global warming" scam; calls "global warming" the "greatest and most successful pseudoscientific fraud" he has ever seen; read full letter here). 


(gain incurred on sale of residence does not qualify for I.R.C. Sec. 121 exclusion because taxpayers did not reside in the residence for the required two-year period before sale; prorated exclusion not available - no change in employment or health status and taxpayers’ need for larger kitchen to better service taxpayers' business not unforeseeable). 


(IDOR proposes to amend assessment practices concerning valuation of ag land; proposal is to remove the crop and livestock reporting service as a source of data for assessors and use other USDA sources for assessors to use). 


(creditor completed work for individual who died before paying for work; creditor brought claim for payment two and one-half years after death and trial court held claim barred by state statute which bars claims against an estate brought more than a year after date of decedent's death regardless of whether the estate is administered within the one-year period and regardless of whether notice has been given of decedent's death or need to file claim in court; trial court decision affirmed - provision does not violate Due Process Clause because Clause inapplicable to self-executing state statute of limitation). 


(horse breeding activity engaged in with intent to make profit; losses from activity deductible; court analyzed each factor of the nine factors). 


(taxpayer, real estate developer, allowed to treat five condominiums as one "building" for purposes of I.R.C. Sec. 168(e)(2) - i.e., whether the "building" is residential or non-residential property). 


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